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COMMONWEALTH v. DESSUS (06/13/69)

decided: June 13, 1969.

COMMONWEALTH
v.
DESSUS, APPELLANT



Appeals from judgments of Court of Common Pleas of Philadelphia County, Jan. T., 1967, Nos. 283 to 289, inclusive, 292, and 293, in case of Commonwealth of Pennsylvania v. Ronald J. Dessus.

COUNSEL

Domenick Vitullo, for appellant.

Benjamin H. Levintow, Assistant District Attorney, with him Roger F. Cox and James D. Crawford, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Montgomery, J.

Author: Montgomery

[ 214 Pa. Super. Page 351]

This was a homicide case. The defendant-appellant was found guilty of murder in the first degree on Indictment No. 290 and was sentenced to life imprisonment by the jury therefor. On all other indictments on which he was adjudged guilty by the jury, the defendant has appealed from the sentences imposed by the court as follows: Indictment No. 283, Rape, Sentence of 10 to 20 years; No. 284, Rape, Sentence suspended; No. 285, Rape, Sentence of 10 to 20 years, commencing at the expiration of sentence imposed on No. 283; No. 286, Burglary, Sentence of 10 to 25 years, commencing at the expiration of sentence on No. 285; No. 287, Conspiracy, Sentence suspended; No. 288, Assault and Battery and Aggravated Assault and Battery, Sentence suspended (The jury found defendant not guilty of assault and battery with intent to murder); No. 289, Assault and Battery, Assault and Battery with intent to Murder, Sentence suspended; No. 292, Aggravated Robbery, Sentence suspended; and No. 293, Aggravated Robbery, Sentence suspended.

The appellant, on this appeal, has preserved seventeen points of error, which were denied by the court below on its refusal to grant appellant's motions for a new trial and in arrest of judgment. No motions were filed in the homicide case. Appellant contends and advances seven alleged violations of his rights before trial, two violations during the trial, five errors on admittance of evidence, and two errors in the court's charge to the jury.

[ 214 Pa. Super. Page 352]

The events which ultimately led to the life imprisonment of this appellant and these appeals occurred between the hours of midnight and 4:00 a.m., April 3, 1966, in the City of Philadelphia. Appellant, age 20, John Burgess, age 23, and James Stukes, age 20, having conspired to commit burglary, broke into the household at 5120 Chester Avenue, Philadelphia, Pennsylvania. They tore from their slumber Mrs. Lena Alexandroff, 79 years of age, her daughter, Mrs. Natalie Tuchar, 44 years of age, and Paula Tuchar, daughter of Mrs. Tuchar, 14 years of age, beat, raped, and robbed them, and then murdered Mrs. Alexandroff, for she died on April 22, 1966 as a result of her injuries. A full description of the shambles created by these men need not be republished here; but because it is pertinent on this appeal, we narrate a portion of the decedent's ordeal and some events subsequent to these crimes.

Shortly after the three men left the house, the police were alerted and the area was carefully searched. Appellant and John Burgess were seen on the street about three blocks from the scene of the crimes. When a police car approached, appellant ran and was chased by an officer, who caught up with him within a block. During the chase, appellant dropped a radio and a raincoat. The radio was identified as one of the objects taken from the victims' home.

At about 4:00 a.m. Paula Tuchar was heard to shout for help from a third floor window. Shortly after she called out, Burgess came to the window, looked out, and shouted that somebody had called the cops. He dragged Paula downstairs to the kitchen. There she saw her mother, appellant, and Mrs. Alexandroff, who was lying on the floor in a pool of blood. She had blood all over her face and hair with remains of egg shells in her hair. The room was spattered with blood also. Paula and her mother were pushed into the cellar. The police arrived at about 4:20 a.m. and

[ 214 Pa. Super. Page 353]

    found Mrs. Alexandroff lying motionless on the kitchen floor. When she began to move a policeman assisted her into a sitting position. She stood briefly, then collapsed, and was carried into the living room and placed into a chair by an officer. They placed Mrs. Alexandroff on a stretcher and took her, along with her daughter and granddaughter, to Mercy-Douglas Hospital, at 50th Street and Woodland Avenue, arriving there at about 4:40 a.m. Hospital records show that Mrs. Alexandroff was seen in the accident ward at 4:45 a.m. An intern who examined Mrs. Alexandroff testified that she was conscious but not fully alert, and complained of pain in her right thigh. There were multiple hematomas and contusions on her face.

Father Borichevsky arrived at Mercy-Douglas Hospital between 5:00 and 5:30 a.m. Mrs. Alexandroff and Mrs. Tuchar were lying on beds in the emergency room, side by side. As Father Borichevsky came into the emergency room, Mrs. Alexandroff was repeating, "We have been beaten and we have been robbed. Why did they do this?" Her statements about being raped were made within ten to fifteen minutes later. During this time Mrs. Alexandroff was strapped to the litter and was being calmed and restrained from moving by Mrs. Tuchar, a nurse and a doctor. She was speaking mostly in Russian and Father Borichevsky, fluent in this language, had no difficulty in understanding what she was saying. The identification of appellant by Mrs. Alexandroff in the emergency room at the Mercy-Douglas Hospital was made after Father Borichevsky heard her first utterances, stated above, and immediately before she stated in response to questions that she had been raped.

At the trial Richard Brandon testified that on or about May 3, 1966, he was in a cell with appellant and approximately 20 other persons at the Detention Center. A man in the cell said to appellant, "They are

[ 214 Pa. Super. Page 354]

    going to burn you for the rape and murder charge." Appellant replied, "I don't care, I had my fun that night. I made my ...


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